Exhaustion of Regulation 33 Garda Discipline Appeals Before Judicial Review: Leave May Be Set Aside Where No “Fundamental Denial of Justice” Is Arguable

1) Introduction

Mulligan v Commissioner Of An Garda Siochana (Approved) [2026] IEHC 569 is a High Court judicial review decision (Phelan J., 31 July 2026) arising from the dismissal of a Garda member following a Board of Inquiry under the Garda Síochána (Discipline) Regulations 2007 (S.I. No. 214 of 2007) (“the 2007 Regulations”).

The respondent Commissioner applied to set aside an earlier ex parte order granting the applicant leave to seek judicial review of: (i) the Board of Inquiry report (6 March 2026), and (ii) the Commissioner’s dismissal decision adopting that report (18 March 2026). The Commissioner’s core argument was that the applicant had an adequate alternative remedy: a statutory appeal under Regulation 33 of the 2007 Regulations, which the applicant did not lodge within the 7-day period.

The case was procedurally unusual because the leave judge (Simons J.) granted leave while expressly reserving for later determination whether the Regulation 33 appeal was an adequate alternative remedy. Days earlier, however, the Supreme Court delivered Amariei v. The Chief Appeals Officer [2026] IESC 22 and A.B. v. Chief International Protection Officer [2026] IESC 23, significantly restating the law on exhaustion of alternative remedies.

2) Summary of the Judgment

The High Court set aside the grant of leave and indicated the proceedings should be dismissed on the basis that:

  • The Regulation 33 appeal (with the powers in Regulations 34–37) is a wide, corrective merits-based remedy capable of addressing the applicant’s pleaded complaints (procedural fairness, evidential sufficiency, fact-finding, and proportionality).
  • Applying Amariei and A.B., none of the pleaded grounds arguably established the narrow exception permitting judicial review despite an available appeal—i.e. a “fundamental denial of justice”, default of fundamental requirements, or fundamental flaw rendering the hearing not a hearing at all.
  • The fact that the applicant may now be out of time for the statutory appeal (and may be refused an extension) does not make judicial review appropriate: adequacy is assessed when the alternative remedy was available; an applicant cannot convert an adequate remedy into an inadequate one by letting the time limit expire.

Although set-aside applications are governed by a stringent test (exceptional, “very plain” cases only), the court held that this was such a case because—viewed through the Supreme Court’s recalibrated approach in Amariei and A.B.—leave was plainly wrongly granted.

3) Analysis

3.1 Precedents Cited (and Their Influence)

(a) Leave and set-aside principles

  • G v DPP [1994] 1 IR 374: reaffirmed as the governing leave-stage framework (prima facie facts, arguable/stateable case, and judicial review as an appropriate remedy).
  • Gordon v DPP [2002] 2 IR 369: central to the set-aside analysis. It establishes (i) the inherent jurisdiction to set aside leave, (ii) the high threshold (“exceptional”, “very plain case”), and (iii) warnings against turning set-aside motions into mini-trials. It also recognises that the mere existence of an appeal does not automatically preclude judicial review—yet in this case the High Court held that, after Amariei and A.B., the absence of any arguable exception made it “plain” that leave should not have been granted.
  • Adam & Iordache v Minister for Justice [2001] 3 IR 53: cited as part of the authoritative set-aside line, reinforcing the sparing nature of the jurisdiction.
  • Kelly v An Bord Pleanála [2022] IEHC 238 and Doyle v Amatrek Ltd v Dublin City Council [2025] IEHC 441: relied on for modern restatements that set-aside is exceptional and must not become a rehearsal of the merits.

(b) The “adequate alternative remedy” doctrine recalibrated

  • Amariei v. The Chief Appeals Officer [2026] IESC 22: used as an authoritative restatement that (i) exhaustion of statutory remedies is the general rule, (ii) an applicant must show arguable grounds to fit within an exception, and (iii) where existing precedent shows the remedy is adequate, only rarely will “exigencies of justice” justify judicial review.
  • A.B. v. Chief International Protection Officer [2026] IESC 23: treated as the pivotal case. The High Court extracted three operational propositions:
    • Default position: pursue the statutory appeal/review rather than judicial review.
    • Scope: the default applies even where breaches of natural/constitutional justice are alleged.
    • Narrow exceptions: judicial review remains only for fundamental denial of justice/default of fundamental requirements/fundamental flaw; the Supreme Court rejected a “degrees of unfairness” approach and disapproved a broad reading of “Stefan” that “a fair appeal does not cure an unfair hearing”.

(c) Garda discipline appeal architecture as a “self-contained” scheme

  • Kelly v. Commissioner of An Garda Síochána [2013] IESC 47: described the 2007 Regulations as a “self-contained process” with significant appeal powers, supporting the conclusion that the statutory scheme is designed to resolve discipline disputes internally.
  • O'Reilly v Commissioner of An Garda Síochána [2018] IECA 3 and O'Reilly v. Commissioner of An Garda Síochána [2018] IECA 34: referred to for observations that the appeal may be akin to a rehearing; while earlier at leave stage Simons J. considered the scope not finally determined, Phelan J. ultimately treated the appeal jurisdiction (textually and jurisprudentially) as broad.
  • Ivers v. Commissioner of An Garda Síochána [2022] IECA 206: emphasised that while not necessarily de novo, the appeal permits evidence and legal representation, aligning it with a robust corrective mechanism.
  • Hegarty v. Commissioner of An Garda Síochána [2022] IEHC 183: cited for the proposition that the discipline regime is an “elaborate and delicately worked out set of checks and balances”, supporting the “adequacy” conclusion.

(d) Post-Amariei/A.B. approach at leave stage

  • H v H [2026] IEHC 402: used comparatively to show how Simons J., when the Supreme Court guidance was directly in view, treated the alternative remedy requirement more stringently—granting leave only for arguable “fundamental defect” grounds and refusing leave for grounds suited to statutory appeal.

3.2 Legal Reasoning

(a) The doctrinal “hinge”: set-aside threshold vs. alternative remedy recalibration

The judgment carefully separates two questions:

  • Procedure (unchanged): the test for setting aside leave remains that in Gordon v DPP [2002] 2 IR 369—exceptional cases only, and only where it is plain leave should not have been granted.
  • Substance (recalibrated): what counts as an “adequate alternative remedy”, and what qualifies as an exception, is now governed by Amariei and A.B..

Applying the recalibrated substantive rule to the “plainly wrong” set-aside lens, Phelan J. held that this was one of the rare cases where the interplay yields set-aside: once the Supreme Court’s narrow exceptions were applied, the applicant’s grounds could not arguably justify bypassing the statutory appeal.

(b) The statutory appeal’s breadth under Regulations 33–37

The court treated the appeal as capable of resolving the full range of typical judicial review complaints because:

  • Regulation 33(3) permits appeal on: non-compliance with the Regulations, unjustified findings on the evidence, failures in fact-finding/consideration of facts, denial of reasonable opportunity to be heard, and disproportionate sanction.
  • Regulation 36 empowers the Appeal Board to hear evidence and receive further evidence.
  • Regulation 37 provides meaningful remedies: affirm, quash, substitute sanction, or direct a fresh Board of Inquiry.

This design was decisive because A.B. and Amariei privilege statutory mechanisms that can correct defects without court intervention.

(c) Why the applicant’s key “withdrawal of complaint” point was not jurisdictional

The leave judge had identified as the “central focus” an arguable question regarding how the Board of Inquiry treated the complainant’s withdrawal from participation. Phelan J. analysed whether this could amount to the kind of fundamental flaw that would justify judicial review notwithstanding an appeal.

The court’s answer was no, for two linked reasons:

  • No statutory dependency on a continuing complaint: the statutory scheme (including GSOC/Fiosrú investigatory routes and the 2007 Regulations) does not make the disciplinary jurisdiction contingent on an injured party maintaining a complaint.
  • It remained a merits/process issue: even if the Board’s approach to the withdrawal statement were wrong, it went to evidential treatment and fairness—matters within the appeal grounds (Regulation 33(3)(b)–(d)) and within the Appeal Board’s corrective powers.

(d) The time-limit point: adequacy assessed when the remedy exists

A key practical holding is that an applicant cannot create judicial review “appropriateness” by failing to pursue an appeal in time. The court reasoned that otherwise statutory appeal schemes could be systematically undermined: applicants could simply let time run and claim judicial review as the only remaining route.

3.3 Impact

(a) Garda discipline litigation

  • The decision strengthens the proposition that the Regulation 33 appeal is the primary route for challenging disciplinary findings/sanctions, including complaints framed as fairness or irrationality.
  • It underscores the critical importance of strict compliance with the 7-day appeal window, and it signals that the High Court will be reluctant to treat judicial review as a backstop where the statutory appeal was available but not pursued.

(b) Judicial review practice (beyond Garda discipline)

  • The judgment operationalises A.B. and Amariei within the set-aside context: even with the high Gordon threshold, leave can be set aside where it becomes clear that no arguable exception to exhaustion exists.
  • It confirms a general principle of wider relevance: the adequacy of an alternative remedy is assessed when it was available, not by reference to whether the applicant later lost it through default.

4) Complex Concepts Simplified

  • Judicial review vs. appeal: judicial review usually examines legality (process and lawfulness), whereas an appeal often re-examines the merits (facts, evidence, proportionality). Here, the statutory appeal was broad enough to address both factual and procedural complaints.
  • “Adequate alternative remedy”: if legislation provides a practical, effective route to challenge a decision (especially via an expert tribunal/board with real corrective powers), courts usually require that route to be used first.
  • Leave stage: permission to bring judicial review. The threshold is low (arguable case), but after A.B. and Amariei, an applicant must also show an arguable basis for bypassing any statutory appeal.
  • Set aside leave: a respondent can ask the court to cancel leave already granted, but only in exceptional cases where it is clear leave should never have been granted.
  • “Fundamental denial of justice”: not just unfairness; it means a breakdown so serious that the hearing cannot properly be regarded as a real hearing (or a core legal requirement has been ignored). Ordinary errors—wrong findings, imperfect procedures, debatable evidential treatment—are typically for appeal.

5) Conclusion

[2026] IEHC 569 applies the Supreme Court’s restated exhaustion doctrine in Amariei v. The Chief Appeals Officer [2026] IESC 22 and A.B. v. Chief International Protection Officer [2026] IESC 23 to Garda discipline litigation, holding that the Regulation 33 appeal is an adequate alternative remedy for challenges to findings, procedures, and sanction. Because the applicant’s grounds did not arguably disclose a “fundamental denial of justice” (or equivalent fundamental defect), the High Court held this was an exceptional case where leave was plainly wrongly granted and therefore set it aside—emphasising that failure to pursue an available appeal in time cannot itself justify resort to judicial review.